State v. Gholson

• Decision Date: 24 January 1927
• Docket Number: No. 27531.,27531.
• Citation: 292 S.W. 27
• Parties: STATE v. GHOLSON.
• Court: Missouri Supreme Court

292 S.W. 27

STATE v. GHOLSON.

No. 27531.

Supreme Court of Missouri. Division No. 2.

January 24, 1927.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

C. E. Gholson was convicted of selling hootch, moonshine, and corn whisky, and he appeals. Affirmed.

Homer Rinehart, of Rolla, for appellant. North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was Convicted in the circuit court of Phelps county on a charge of unlawfully and feloniously selling hootch, moonshine, and corn whisky, and appealed.

The information, which was filed December 4, 1924, is in nine counts. The first count charges that the defendant on or about September 2, 1924, unlawfully and feloniously sold one pint of hootch, moonshine, and corn whisky at the county of Phelps to Jenson Tyson for the price and sum of $3. The other eight counts are identical with the first, except as to the dates of the sales charged. The record shows that the case was tried on September 7, 1925. The jury found the defendant guilty on the first count of the information, but failed to agree as to the punishment to be inflicted, whereupon the court fixed the punishment at two years' imprisonment in the state penitentiary. The jury found the defendant not guilty on the other counts. Motions for new trial and in arrest were filed and overruled, and the defendant was sentenced to imprisonment in the penitentiary for a term of two years.

There appears in the record what purports to be a bill of exceptions, but it is not signed by the trial judge, as required by section 1459, R. S. 1919. It cannot, as has often been held, be considered, and our review is therefore limited to the record. State v. Goodson (Mo. Sup.) 252 S. W. 366; State v. Cooney (Mo. App.) 256 S. W. 514.

It is contended in the brief of counsel for appellant that the "court erred in submitting to the jury the guilt of defendant upon both counts 1 and 2 of the information, both embracing a charge which under the law was a felony, and being separate and independent acts and transactions. In no event can a defendant be unlawfully tried at the same time for two separate and distinct felonies." In support of their contention counsel cite State v. Guye, 299 Mo. 348, 252 S. W. 955. In that case, at page 366 (252 S. W. 959), Judge Bailey said;

"The nine counts of the information are exactly alike, except as to dates of alleged assaults. Each count constituted a separate and distinct crime. State v. Palmberg, 199 Mo. L c. 240 [97 S. W. 566, 116 Am. St. Rep. 476] and State v. Henderson, 243 Mo. l. c. 508 . The law in this state is well settled to the effect that there could have been but one conviction, regardless of the nine counts pleaded in the information. State v. Carragin, 210 Mo. loc. cit. 362 [109 S. W. 553, 16 L. R. A. (N. S.) 561]; State v. Porter, 26 Mo. 201. Under the circumstances, we are of the opinion that the state should have been put to its election before the commencement of the trial as to which count it would proceed under."

The general rule is that the joinder of distinct felonies in the same indictment does not render the indictment bad as a matter of law. 31 C. J. 784. The rule in this jurisdiction is that a defendant cannot be convicted of two distinct felonies charged in the same information, barring certain statutory...